Impeachment: What If The Vote On Witnesses Is A Tie? Will Justice Roberts Need To Step In To Break It?

Hotair ^ | 01/30/2020 | Jazz Shaw

[SeekAndFind]

Yes, I know that as of last night, Chuck Schumer was saying that he doesn’t believe he has enough Republican votes in the Senate to allow witnesses to be called and new evidence admitted in the impeachment trial. And Cocaine Mitch is looking more and more confident that he can keep enough of his caucus inside the corral to make sure it doesn’t happen. But nothing is written in stone until the vote actually takes place once the Q&A portion of the trial is complete.

The Democrats would need four GOP votes to make it happen, getting them to 51. But what if they get three? That splits the chamber in a 50-50 tie and we’re into some uncharted territory, though not everyone agrees with that description. The smart money seems to be on the belief that Chief Justice John Roberts won’t step in to break the tie, but the smart money has been wrong before. (Politico)

Ahead of a tight vote on whether to hear new witnesses in President Donald Trump’s impeachment trial, the Senate is preparing for the possibility that this crucial roll call has an asterisk in the history books: It ends in a tie.

And it’s a scenario that would suddenly put a spotlight on Chief Justice John Roberts.

For weeks, Republicans and Democrats alike have been confident that Roberts would not break a tie vote during Trump’s impeachment trial, citing past precedent, the Constitution and their own gut feelings about how it would play in a polarized nation…

“That is a great unknown. There’s no way to know procedurally what he would do. Or if he’ll do” anything, said Sen. James Lankford (R-Okla.).

We discussed this question previously and the rather sparse precedent for opinions on either side. The Constitution doesn’t specifically say that the Chief Justice can break ties as part of his role in “presiding” over the trial, but it also doesn’t say that he can’t. (In fact, the Constitution doesn’t provide much of anything in the way of details.)

As previously discussed, the only actual precedent we have comes to us from the impeachment trial of Andrew Johnson. At that time, Chief Justice Salmon P. Chase broke two ties regarding procedural matters by casting a vote. But does that really settle the matter? That’s up for debate because one of those votes was on the question as to whether or not he could vote to break ties. In other words, he cast a vote before it had been determined that he was entitled to cast a vote.

Not for nothing, but isn’t this something that the Senate could have voted on during the first two days when they were establishing the rules? At least then it would already be out of the way and I get the impression that Roberts would go along with whatever the Senators decided. After all, the Constitution does give them the right to make their own rules of conduct. But even on that issue, there have been doubts raised. While everyone agrees that they can make their own rules, are their rules binding on someone from the Judicial branch?

Given his past conduct and desire to not make the Supreme Court look overtly political, I’m guessing that Roberts would prefer not to have to cast a tiebreaking vote. With that in mind, he’s probably hoping that they spare him the trouble and just come up with 51 votes no matter which way the decision goes.

The only other question that doesn’t seem to have been resolved is that of whether or not Mike Pence could come down and break the tie. Remember that the Constitution only states that “The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.” It doesn’t say anything about that rule being suspended during an impeachment trial. But the counter-argument there is that the VP has to be sitting and presiding over the Senate to exercise that power, replacing whoever the Senate President pro tempore was. At the moment, John Roberts is “presiding” over the Senate, if you follow that line of thinking.

If both Schumer and McConnell are correct in their estimations, it shouldn’t come to this and the witness vote will fail. But either Murkowski or Lamar Alexander could still screw things up. In that case, John Roberts will be put in a position where he’ll be making history whether he likes it or not.

[Jeff Chandler]

He’ll declare it a tax?

[sevlex]

Roberts is a referee. I doubt he would have the authority to cast a vote.

Pence, on the other hand, is a voting member of the Senate.

[Vigilanteman]

Why would this be different from any other tied Senate vote where the Vice President is the tie breaker?

[x]

If there’s a tie, the measure loses. If there’s a tie and Roberts doesn’t want it to pass, there’s no reason for him to vote.

[campaignPete R-CT]

If he abstains, leaving a 50-50 tie, the motion fails.

[samtheman]

He’ll declare it a tax?
—
LOL!!!!!!!!!!!!!!!!!

[Magnum44]

I thought it was already stated that it take 51 to pass, so there is no tie requiring a tie breaker. Tie equates to failure to pass.

[Cboldt]

50/50 is not a majority. The measure fails. No tie breaker needed.

[lakecumberlandvet]

I don’t think it’s entirely safe to assume that all democrats will vote for witnesses. In the case of a tie, IMHO, the vice-president would cast the tie-breaking vote.

[Buttons12]

I’m of 2 minds on this. The House had their witnesses, though one-sided. Procedure would require a vote now.
However, if the Pres. wants witnesses he should get them, he’s the accused. And, if the Bidens aren’t brought to account here and now, they probably never will be...in which case the Dems will be emboldened to bring yet another impeachment case next week.
There is now an opportunity to rip the veil from the Democrat face, expose everything in such a way the media will be obliged to report it.
No witnesses and a perfunctory acquittal just kicks the can down the road. The coup needs to be obliterated.

[Magnum44]

Roberts does not get a vote. Thats not in his job description, any more than a judge gets to tie break a split jury in normal court. The number of dumb conjecture articles from writers on both sides who do not understand the basics of the constitution is astounding...

[redshawk]

He’ll declare it a tax?
—
LOL!!!!!!!!!!!!!!!!!
....
Roberts legacy....worst justice ever.

[GreenHornet]

Why would this be different from any other tied Senate vote where the Vice President is the tie breaker?

In this case, the VP has a direct personal interest in the outcome. Imagine a situation at some point in the future where an unscrupulous Vice President could cast the deciding vote to remove a president and assume the presidency himself.

[samtheman]

I agree.

It makes me think (and this is hard for me to say but I’m going to say it because I have been thinking it, at least wondering it):

Was GWB worse than Clinton?

Was GWB worse than Carter?

He was certainly, without a doubt, the worst Republican President in the history of our Republic, but was he also worse than Clinton and possibly worse than Carter?

Just a thought.

Just a question.

I’m not married to the idea.

[crz]

I am against witnesses for two reasons. First, it not the job of the senate in this case to do the job of the House. Second, if they allow witnesses, this could result in a run-a-way jury-much like grand juries sometimes do, resulting in the tie up of congress.

You say that it would be a good thing to tie up congress? So no more judges confirmed? What would happen if one or two in the SCOTUS drop dead?

[Vigilanteman]

I could better imagine how the electorate who put the president in office would react at an election a mere nine months later. Pence is not that kind of guy.

Further, I don't think you can pass a measure on a tie vote.

[SeekAndFind]

RE: What would happen if one or two in the SCOTUS drop dead?

THAT is the point of the Democrats. Calling witnesses is a STRATEGY to tie up judge and justice appointments until they (they hope) take over in the next elections.

In other words — THEY DON’T WANT ANYTHING ACCOMPLISHED WHILE TRUMP IS PRESIDENT. What better way to sabotage Trump’s policies than this?

[ifinnegan]

Pence would.

[DoodleDawg]

Pence, on the other hand, is a voting member of the Senate.

But plays no part in the impeachment process. My expectation would be in the event of a tie the motion for witnesses would fail.